Navigating Inherent Bias in Social Security Law

In a perfect world, there’d be less need for the safety nets of Social Security, and no one who warranted disability would be denied because of administrative or subjective biases. This world isn’t perfect, though, and biases exist to the point where a whole industry has been formed to get unduly denied and disabled Americans the support they have been and are guaranteed by Congress and the law.

Social Security disability law is often a squeeze play. You counsel your clients to tell the truth, even when it makes them uncomfortable. However, sometimes the truth, even when it strengthens their overall claim, almost guarantees they’re going to end up in a lengthy appeal just to get their benefit.

Here’s an example of one particular question that should have all reasonable people scratching their heads. The new question in the Social Security Disability Application reads: “Does ______ have any years with no earnings in which she was caring for a child under the age of 3?”

Most people, including the Social Security Administration (SSA) adjudicator, will read this as: “During any of these non-working years that you’re telling us about, were you caring for a small child?”

The probable outcome being a denial that will reflect some version of the opinion that, if it weren’t for the young child in the home and the applicant becoming, by necessity, a stay-at-home parent, they could have pushed themselves to gainful employment.

That’s quite the hard line to draw, and would make sense if a disabled mother or father of a young child had any other choice but to take care of that child first.

Remember, we’re not talking about someone malingering, we’re talking about someone who legitimately cannot work and still has to figure out how to raise a child. They certainly cannot afford childcare without employment. And often, additional support structures are involved, including Department of Social & Health Services, family, and even Child Protective Services. The kinds of roadblocks created by delaying or denying earned benefits only make a bad situation worse.

The true cost of unfair and biased questions like this is additional turmoil for honest applicants who have had the misfortune to become unable to work while also being a parent of a young child. The true cost of this type of bias is endangering housing, health care, and whatever nuclear family still exists for these already at-risk families. Why would a question like this even exist on an application for benefits?

In wondering why this question even exists, it would make sense to conclude it has to do with some sort of common fraud. Is there some sort of massive fraud from parents of young children applying for disability? If so, is there data on this?

No there isn’t. The data, surprisingly…doesn’t point to any illicit groups of disabled parents collaborating to defraud Social Security.
In fact, the data on fraud for Social Security disability points in an entirely opposite direction. Only 0.7% of Americans receiving disability benefits are getting them, knowingly or unknowingly, when they should not.

So, the purpose of this question doesn’t seem to have anything to do with protecting the benefit from fraud. Again, then why is this question even on the Social Security disability application? What conclusion are we to draw except the obtuse? A failure of reason.

While we wait on the Social Security Administration to hopefully fix this, we have to continue to counsel clients on telling the truth to a system where the inherent bias of the application will likely lead them into an appeal situation.

This is unfair. And it’s unduly harmful to the population that needs these benefits the most. While effective legal representation protects some from the pitfalls of bureaucratic bias, many others lack the means to afford such basic justice. And those who can often still face years of appeals and a terrible amount of stress. How can a program of support meant to help people become so opaque to the very people it’s supposed to help?

About the Author

Randi L. Johnson. Randi is the founder of Lilac City Law in Spokane, a disability and family estate planning law firm. She has extensive experience advocating for clients in need of disability support and has argued cases in 39 states and Puerto Rico, handling more 1,500 Social Security hearings.

2 thoughts on “Navigating Inherent Bias in Social Security Law”

talkvets

Great Article – I shared on LinkedIn. Lots of Vets have both VA and SSDI/SSI claims – some of them with children too. I know it’s not the thesis of your article to be about Veterans, but it’s what got my attention (how it might reflect on that population since I’ve done a lot of work with them). Thank you, Randi!